II. Criminal Law Defenses Capable of Critical Psychology Infusion
“Those who compose the fringe of society have always been the acceptable scapegoats, the butt of jokes, and the favored whipping boys. It resembles the pattern within psychotic families where one child is set up as “sick” and absorbs the whole family's destructiveness. The child may indeed be sick in unsociably visible and dramatically destructive ways, but the family is unhealthy in its conspiracy not to see in themselves the emanation of such sickness. The child becomes the public mirror of quietly enacted personality slaughter.”
Traditionally, in order to be considered a homicide under the law, a killing must have been committed with a degree of premeditated coolness and deliberation under circumstances in which “ordinary men” would not have their reason obscured by passion. Such a homicide, typical of what is considered a first-degree offense, must have sprung from a wicked, depraved, or malignant mind worthy of the attachment of criminal culpability. Accordingly, a homicide committed in the absence of these criteria is deemed worthy of mitigation.
According to the Model Penal Code (“MPC”), “At common law, murder was defined as the unlawful killing of another human being with‘malice aforethought.’“ The difference between murder and manslaughter was generally understood to be the presence or absence of malice. Malice was a complicated concept under the common law that generally included four states of mind:
• the intent to kill or an awareness that death would result, unless it was caused by the heat of passion;
• the intent to cause grievous bodily injury;
• extreme recklessness variously described as circumstances evincing “a depraved mind,” an “abandoned or malignant heart” or a “wanton and wilful disregard of an unreasonable human risk”; or
• the intent to commit a felony, known as the “felony-murder” rule.
Therefore, all unlawful homicides committed without malice aforethought were considered either voluntary or involuntary manslaughter. Involuntary manslaughter consisted of unintentional homicide due to ordinary recklessness arising in the commission of minor crimes while voluntary manslaughter, the precursor to extreme mental or emotional disturbance, has been defined as “an intentional homicide, done in a sudden heat of passion, caused by adequate provocation, before there has been a reasonable opportunity for the passion to cool.” Passion has typically been defined as rage, but also includes fear or any violent and intense emotion sufficient to dethrone reason. The essence of voluntary manslaughter is the killing of the “provocateur,” without malice aforethought, under the sudden impulse of passions ignited by the provocation. The provocation defense, as originally conceived, was a concession to human frailty, and perhaps non-deterability, where the provocative act was of such a nature that it disturbed the judgment and mental faculties of the “reasonable man.” The provocative act thus weakened the killer's self-control to the point where he was not sufficiently culpable for murder, but only for manslaughter.
This concession to human frailty is important and implicates the rationale for consideration of critical psychology as elucidating the psyche of a racially abused offender. The psychology along with the considered affirmative defenses suggests that one who kills while provoked might demonstrate a significantly different character deficiency than one who kills absent such passion.
The doctrines addressed in this part spring from the evolution of the traditionally defined definition of murder. They are overlapping defenses that take account of the absence of some of the above-mentioned hallmarks of homicide in the first degree--the lack of premeditation, deliberation, and malice. Provocation, extreme emotional and mental disturbance, and diminished capacity share a common genesis, but have evolved to take on separate and unique forms. This part will explore the common history, highlight similarities, and focus on distinctions in these doctrines, especially as they allow for infusion with critical psychology.
